As filed with the Securities and Exchange Commission on February 25, 2000
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Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACNIELSEN CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 06-1454128
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
177 Broad Street
Stamford, CT 06901
(Address, including zip code, of Registrant's principal executive office)
Deferred Compensation Plan
(Full title of the Plan)
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Earl H. Doppelt
Executive Vice President and General Counsel
177 Broad Street
Stamford, CT 06901
(203) 961-3000
(Name, address, including zip code, and telephone number, including area
code, of Registrant's agent for service)
Copies to:
Richard A. Garvey, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
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CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Offering Maximum
Amount Price Aggregate Amount of
Title of Securities to be to be Per Offering Registration
Registered Registered Share Price (a) Fee
Deferred Compensation 5,000,000 100% $5,000,000 $1,320
Obligations (b)
(a) Estimated solely for the purpose of determining the registration fee.
(b) Deferred Compensations Obligations are unsecured obligations of the
Registrant to pay deferred compensation in accordance with the terms of
the Deferred Compensation Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by ACNielsen Corporation (the "Company" or
the "Registrant") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 and the Company's Amended Annual Report on Form
10-K/A as filed on June 25, 1999.
(b) The Company's Quarterly Reports on Forms 10-Q filed on May 13,
1999, August 11, 1999 and November 12, 1999.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement indicating that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
The securities being registered under this registration statement
consist of Deferred Compensation Obligations (the "Obligation") under the
terms of the ACNielsen Corporation Deferred Compensation Plan (the "Plan").
The Plan allows a select group of management or highly compensated employees
(the "Participants") of the Company and its affiliates to defer the payment
of a specified portion or amount of compensation in the form of base salary
or incentive awards payable by the Company or its affiliates to a
Participant. Capitalized terms used without definition herein have the
meanings assigned in the Plan. A description of the Obligations follows.
Subject to the provisions of the Plan, a Participant may elect to defer
cash compensation or awards to be received from the Company or an affiliate.
A Participant's deferrals will be credited to a Deferral Account. A Deferral
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Account will be maintained solely as a bookkeeping entry by the Company to
evidence the unfunded obligations of the Company or an affiliate. The
Company and any affiliate may, in their sole discretion, credit notional
contributions to one or more Company Accounts established on behalf of a
Participant. A Company Account will be maintained solely as a bookkeeping
entry by the Company to evidence unfunded obligations of the Company or an
affiliate. Amounts credited to a Deferral Account or Company Account shall
be deemed to be invested, at the Participant's discretion, in one or more
funds as may be specified from time to time by the Committee. The amounts of
hypothetical income and appreciation and depreciation in value of a Deferral
Account or a Company Account will be credited and debited to, or otherwise
reflected in, such Deferred Account or Company Account from time to time.
Unless otherwise determined by the Committee, amounts credited to a Deferral
Account or Company Account shall be deemed invested in a hypothetical
investment as of the date so credited. A Participant will become vested in
the amount of any earnings credited to his or her account, and the amount of
any Company notional contributions, in accordance with the applicable vesting
schedule established under the Plan. Payments in settlement of a Deferred
Account or a Company Account shall be made as soon as practicable after the
date or dates (including upon the occurrence of specified events), and in
such number of installments, as may be directed by the Participant in his or
her election. If a Participant has elected to receive installment payments,
unpaid vested balances will continue to earn gains or losses based upon the
performance of the investment vehicle(s) which such Participant has
designated as his or her hypothetical investment(s). The Committee may set a
minimum amount for each distribution of deferral and/or Company
contributions. In the event of a Participant's death prior to the payment of
all vested amounts remaining in his or her Deferral Accounts or Company
Accounts, such amounts shall be paid to the Participant's designated
Beneficiary in a single lump sum. The Committee may provide that vested
amounts credited to a Participant's Deferral Accounts or Company Accounts may
be paid out in a single lump sum in the event of a Change of Control, the
termination of a Participant's employment with the Company or an affiliate or
a termination of the Plan. The Company shall settle a Participant's Deferral
Account(s) and vested Company Account(s), and discharge all of its
obligations to pay deferred compensation under the Plan by payment of cash
equal to the Fair Market Value of the vested hypothetical amounts credited to
the applicable Deferral Account or Company Account.
The Committee may, in its discretion, establish one or more Trusts and
deposit therein cash or other property in amounts not exceeding the amount of
the Company's obligations with respect to a Participant's Deferral Account or
Company Account. The Committee may with prospective or retroactive effect,
amend, alter, suspend, discontinue, or terminate the Plan at any time without
the consent of Participants, stockholders, or any other person; provided,
however, that without consent of a Participant, no such action shall
materially and adversely affect the rights of such Participant with respect
to any rights to payment of amounts credited to such Participant's Deferral
Accounts or Company Accounts.
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The Plan is intended to constitute an "unfunded" plan for deferred
compensation and Participants shall rely solely on the unsecured promise of
the Company for payment. With respect to any payment not yet made to a
Participant under the Plan, nothing contained in the Plan shall give a
Participant any rights that are greater than those of a general unsecured
creditor of the Company, subject to the Committee's ability to make other or
additional arrangements under the Plan. A Participant and his or her
Beneficiary shall assume all risk in connection with any decrease in value of
his or her Deferral Account and for his or her Company Account and neither
the Company nor the Committee shall be liable or responsible therefor.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such officer, director, employee or agent acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests, and, for criminal proceedings, had no
reasonable cause to believe his conduct was unlawful. A Delaware corporation
may indemnify officers and directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to
be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
The Company's Restated Certificate of Incorporation provides that the
Company shall indemnify directors and officers to the fullest extent
permitted by the laws of the State of Delaware. The Company's Restated
Certificate of Incorporation also provides that a director of the Company
shall not be liable to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent such
exemption from liability or limitation thereof is not permitted under the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended.
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The indemnification rights conferred by the Restated Certificate of
Incorporation of the Company are not exclusive of any other right to which a
person seeking indemnification may otherwise be entitled. The Company will
also provide liability insurance for the directors and officers for certain
losses arising from claims or charges made against them while acting in their
capacities as directors or officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement:
4.1 ACNielsen Corporation Deferred Compensation Plan.
5.1 Opinion of Simpson Thacher & Bartlett as to the
legality of the securities offered under the Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Simpson Thacher & Bartlett (included in
Exhibit 5.1 hereto).
24.1 Power of Attorney.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement (except to the extent the information required to be
included by clauses (i) or (ii) is contained in periodic reports filed by the
Company pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference into this Registration Statement);
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
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(2) That, for the purposes of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Stamford, State of Connecticut, on
this 23rd day of February, 2000.
ACNIELSEN CORPORATION
(Registrant)
By /s/ Earl H. Doppelt
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Earl H. Doppelt
Executive Vice President
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title
* Nicholas L. Trivisonno Chairman, Chief Executive Officer and
- ---------------------------- Director (principal executive officer)
Nicholas L. Trivisonno
* Robert J. Chrenc Executive Vice President and Chief
- ---------------------------- Financial Officer (principal financial
Robert J. Chrenc and accounting officer)
* Robert H. Beeby Director
- ----------------------------
Robert H. Beeby
* Michael P. Connors Vice Chairman and Director
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Michael P. Connors
* Donald W. Griffin Director
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Donald W. Griffin
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* Thomas C. Hays Director
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Thomas C. Hays
* Karen L. Hendricks Director
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Karen L. Hendricks
* Robert M. Hendrickson Director
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Robert M. Hendrickson
* Robert Holland, Jr. Director
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Robert Holland, Jr.
* John R. Meyer Director
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John R. Meyer
* Brian B. Pemberton Director
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Brian B. Pemberton
* Robert N. Thurston Director
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Robert N. Thurston
By /s/ Earl S. Doppelt
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Attorney-in-fact
February 23, 2000
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INDEX TO EXHIBITS
Exhibit Description
Number
4.1 ACNielsen Corporation Deferred Compensation Plan.
5.1 Opinion of Simpson Thacher & Bartlett as to the
legality of the securities offered under the Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Simpson Thacher & Bartlett (included in
Exhibit 5.1 hereto).
24.1 Power of Attorney.
8
Exhibit 4.1
ACNIELSEN CORPORATION
DEFERRED COMPENSATION PLAN
1. Purpose.
The purpose of the Plan is to provide certain members of a
select group of management or highly compensated employees of ACNielsen
Corporation (the "Company") and its affiliates a means to defer receipt of
compensation and to have such deferred amounts treated as if invested in
specified investment vehicles in order to enhance the competitiveness of the
Company's executive compensation program and, therefore, its ability to
attract and retain key personnel necessary for the continued success and
progress of the Company.
2. Definitions.
The following terms used in the Plan shall have the meanings
set forth below:
(a) "Administrator" shall mean the person or persons to whom
the Committee has delegated the authority to take any or all action under the
Plan otherwise to be taken by the Committee, except as may otherwise be
required under Section 8.
(b) "Beneficiary" shall mean any person (which may include
trusts and is not limited to one person) who has been designated by the
participant in his or her most recent written beneficiary designation form
filed with the Company to receive the benefits specified under the Plan in
the event of the Participant's death. If no Beneficiary has been designated
who survives the Participant's death, then Beneficiary means any person(s)
entitled by will, or in the absence thereof, the laws of descent and
distribution to receive such benefits.
(c) "Beneficial Owner" shall have the meaning given such term
in Rule 13d-3 under the Exchange Act.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Change in Control" shall mean the occurrence of any one
of the following events:
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(i) any Person (other then the Company, any trustee
or other fiduciary holding securities under an employee benefit plan of the
Company, or any company owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of stock
of the Company), becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing twenty percent (20%) or more of the
combined voting power of the Company's then-outstanding securities;
(ii) during any period of twenty-four (24) months
(not including any period prior to the Effective Date), individuals who, at
the beginning of such period, constitute the Board, and any new director
(other than (A) a director nominated by a Person who has entered into an
agreement with the Company to effect a transaction described in Sections
2(e)(i), (iii) or (iv) of the Plan, (B) a director nominated by any Person
(including the Company) who publicly announces an intention to take or to
consider taking actions (including, but not limited to, an actual or
threatened proxy contest) which, if consummated, would constitute a Change in
Control, or (C) a director nominated by any Person who is the Beneficial
Owner, directly or indirectly, of securities of the Company representing ten
percent (10%) or more of the combined voting power of the Company's
securities) whose election by the Board or nomination for election by the
Company's stockholders was approved in advance by a vote of at least two-
thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute at least a
majority thereof;
(iii) the stockholders of the Company approve
any transaction or series of transactions under which the Company is merged
or consolidated with any other company, other than a merger or consolidation
(A) which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than sixty-six and two thirds percent (66-2/3%) of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation and (B) after
which no Person holds twenty percent (20%) or more of the combined voting
power of the then-outstanding securities of the Company or such surviving
entity; or
(iv) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
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(g) "Committee" shall mean the Compensation Committee of the
Board or any other directors of the Company designated as the Committee by
the Board. Except as may otherwise be required under Section 8 or by
applicable law, any function of the Committee may be delegated to the
Administrator.
(h) "Company" shall mean ACNielsen Corporation, a Delaware
corporation.
(i) "Company Account" shall mean the account or subaccount
established and maintained by the Company for specified notional
contributions, if any, made by the Company or an affiliate with respect to a
Participant, as described in Section 6. A Company Account will be maintained
solely as a bookkeeping entry by the Company to evidence unfunded obligations
of the Company or an affiliate.
(j) "Deferral Account" shall mean the account or subaccount
established and maintained by the Company for specified deferrals by a
Participant, as described in Section 6. A Deferral Account will be
maintained solely as a bookkeeping entry by the Company to evidence unfunded
obligations of the Company or an affiliate.
(k) "Effective Date" shall mean April 1, 2000.
(l) "Fair Market Value" shall mean, on a given date, (i) with
respect to any mutual fund, net asset value as reported in The Wall Street
Journal with respect to the date of valuation, and (ii) with respect to any
alternative investment, the value, as determined in good faith by the
Committee, based on all relevant factors for determining the fair market
value of an investment of such type and nature. In determining Fair Market
Value, the Committee may rely upon a valuation made by independent third
party appraisers experienced in the valuation of investments similar to the
investment.
(m) "Participant" shall mean any employee of the Company or
any affiliate who is designated by the Committee as eligible to participate
in the Plan and who makes an election to participate in the Plan.
(n) "Person" shall have the meaning given for purposes of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended.
(o) "Plan" shall mean the ACNielsen Corporation Deferred
Compensation Plan.
(p) "Plan Year" shall mean the calendar year, except for the
first Plan Year, which shall be a short Plan Year beginning April 1, 2000 and
ending December 31, 2000.
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(q) "Trust" shall mean any trust or trusts established or
designated by the Company to hold assets in connection with the Plan;
provided, however, that the assets of such trusts shall remain subject to the
claims of the general creditors of the Company in the event of an insolvency
of the Company or, if applicable, its affiliate. The Company or the
affiliate, as the case may be, shall be considered "insolvent" for purposes
of this Plan and any Trust if (i) the Company or the affiliate is unable to
pay its debts as they become due, or (ii) the Company or the affiliate is
subject to a pending proceeding as a debtor under the United States
Bankruptcy Code.
3. Administration.
(a) Authority. Both the Committee and the Administrator
(subject to the ability of the Committee to restrict the Administrator) shall
administer the Plan in accordance with its terms, and shall have all powers
necessary to accomplish such purpose, including the power and authority to
construe and interpret the Plan, to define the terms used herein, to
prescribe, amend and rescind rules and regulations, agreements, forms, and
notices relating to the administration of the Plan, and to make all other
determinations necessary or advisable for the administration of the Plan.
Any actions of the Committee or the Administrator with respect to the Plan
shall be conclusive and binding upon all persons interested in the Plan,
except that any action of the Administrator will not be binding on the
Committee. The Committee and Administrator may each appoint agents and
delegate thereto powers and duties under the Plan, except as otherwise
limited by the Plan.
(b) Administrator. The Administrator shall be appointed by,
shall remain in office at the will of, and may be removed, with or without
cause, by the Committee. The Administrator may resign at any time. The
Administrator shall not be entitled to act on or decide any matter relating
solely to himself or herself or any of his or her rights or benefits under
the Plan. The Administrator shall not receive any special compensation for
serving in his or her capacity as Administrator but shall be reimbursed for
any reasonable expenses incurred in connection therewith. No bond or other
security need be required of the Administrator in any jurisdiction.
(c) Limitation of Liability. Each member of the Committee
and the Administrator shall be entitled to, in good faith, rely or act upon
any report or other information furnished to him or her by any officer or
other employee of the Company or any affiliate, the Company's independent
certified public accountants, or any executive compensation consultant, legal
counsel, or other professional retained by the Company to assist in the
administration of the Plan. To the maximum extent permitted by law, no
member of the Committee or the Administrator, nor any person to whom
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ministerial duties have been delegated, shall be liable to any person for any
action taken or omitted in good faith in connection with the interpretation
and administration of the Plan.
(d) Indemnification. To the maximum extent permitted by law,
members of the Committee and the Administrator shall be fully indemnified and
protected by the Company with respect to any action taken or omitted in good
faith in connection with the interpretation or administration of the Plan.
4. Participation. The Committee will notify each person of his or
her eligibility to participate in the Plan not later than fifteen (15) days
(or such lesser period as may be practicable in the circumstances) prior to
any deadline for filing an election form.
5. Deferrals; Company Contributions.
(a) Deferrals.
(i) In General. To the extent authorized by the
Committee, a Participant may elect to defer the following cash compensation
or awards to be received from the Company or an affiliate: base salary,
annual incentive awards and long-term incentive awards. The Committee may
impose limitations on the amounts permitted to be deferred and other terms
and conditions of deferrals under the Plan, including minimum and/or maximum
periods of deferral. Any such limitations, and other terms and conditions of
deferral, shall be set forth in the rules relating to the Plan or election
forms, other forms, or instructions published by the Committee.
(ii) Deferral Elections. Except as otherwise
provided by the Committee with respect to the first Plan Year, an election to
defer must be made by a Participant prior to (i) the first day of the
performance period for base salary and annual incentive awards, and (ii) the
middle of the performance period for long-term incentive awards, and any such
election must be received by the Committee prior to the date specified by the
Committee. Once an election form, properly completed, is received by the
Company, the elections of the Participant shall be irrevocable; provided,
however, that the Committee may, in its discretion, permit a Participant to
change the form or timing of distribution by filing a later election form;
and provided, further, that any election to change the form or timing of
distribution be made (x) only while the Participant is an active employee at
the Company or an affiliate and (y) at least one (1) full Plan Year prior to
the date such amounts otherwise would be payable. Subject to the minimum
deferral period set forth in Section 5(c) hereof, a Participant may elect to
receive his or her payout at any time, and may elect to receive his or her
payout in (i) a lump sum or (ii) from one (1) to ten (10) approximately equal
annual installments.
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(iii) Deferral Amounts. Participants may elect
to defer up to fifty percent (50%) of base salary and up to one hundred
percent (100%) of annual incentive awards and long-term incentive awards.
Notwithstanding the above, with respect to the first Plan Year, Participants
may make deferrals only with respect to (i) base salary earned after April 1,
2000, and (ii) annual incentive awards for 2000; deferrals will not be
permitted of all or any portion of 1999-2000 long-term incentive awards.
With each election made, a Participant must defer a minimum of Five Thousand
Dollars ($5,000). In no event may a Participant's deferral elections result
in a reduction of his or her nondeferred compensation for the period to an
amount below that necessary to satisfy applicable employment taxes on
deferred and nondeferred compensation, benefit plan withholding amounts, and
income tax withholding for nondeferred compensation.
(b) Company Notional Contributions. The Company and any
affiliate may, at any time, in their sole discretion, credit notional
contributions to one or more Company Accounts established on behalf of a
Participant. The vesting schedule and other terms and conditions for such
notional Company contributions shall be established from time to time by the
Committee in its sole discretion.
(c) Deferral Period. At the time a deferral election is
made, the Participant must specify the deferral period and the first payment
date with respect to (i) amounts subject to such deferral and (ii) such
portion of any Company contributions that vest in the Plan Year with respect
to which such deferral election is made. To the extent a portion of a
Company contribution vests during a Plan Year with respect to which no
deferral election has been made by the participant, such amounts will be paid
out in lump sum as of the first day of the second Plan Year following the
Plan Year in which such vesting occurs. All deferral periods must be for a
minimum of one (1) Plan Year (exclusive of the Plan Year in which the
deferred amounts are earned), and the first payment date may be no sooner
than the first day of the second Plan Year following the Plan Year in which
the deferred amounts are earned.
6. Accounts.
(a) Establishment of Accounts. One or more Deferral Accounts
and one or more Company Accounts will be established for each Participant, as
determined by the Committee. The amount of base salary or awards deferred
with respect to each Deferral Account will be credited to a Participant's
Deferral Account as of the date on which such amounts would have been paid to
the Participant but for the Participant's election to defer receipt
hereunder, unless otherwise determined by the Committee. Notional Company
contributions shall be credited to a Participant's Company Account as of the
date determined by the Committee. Participant deferrals and notional Company
contributions will be deemed to be invested in one or more of the
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hypothetical investments, as provided in Section 6(b) hereof, as of the date
of the deferral or credit, as the case may be. The amounts of hypothetical
income and appreciation and depreciation in value of a Deferral Account or a
Company Account will be credited and debited to, or otherwise reflected in,
such Deferral Account or Company Account from time to time. Unless otherwise
determined by the Committee, amounts credited to a Deferral Account or
Company Account shall be deemed invested in a hypothetical investment as of
the date so credited.
(b) Hypothetical Investments. Subject to the provisions of
Sections 6(c) and 8, amounts credited to a Deferral Account or Company
Account shall be deemed to be invested, at the Participant's direction, in
one or more of such mutual funds as may be specified from time to time by the
Committee, and/or such other investment vehicles as may be specified from
time to time by the Committee. The Committee may change or discontinue any
hypothetical investment vehicle available under the Plan in its discretion.
(c) Allocation and Reallocation of Hypothetical Investments.
A Participant may allocate amounts credited to his or her Deferral Account or
Company Account to one or more of the hypothetical investment vehicles
authorized under the Plan. Subject to the rules established by the
Committee, if more than one hypothetical investment vehicle is provided, a
Participant may reallocate amounts credited to his or her Deferral Account or
Company Account as of the first day of the calendar month next following the
filing of Participant's election to one or more of such hypothetical
investment vehicles, by filing with the Committee a notice, in such form as
may be specified by the Committee, not later than the fifteenth (15th) day of
the preceding month. The Committee may, in its discretion, restrict
allocation into or reallocation by specified Participants into or out of
specified investment vehicles or specify minimum or maximum amounts that may
be allocated or reallocated by Participants.
(d) Trusts. The Committee may, in its discretion, establish
one or more Trusts (including sub-accounts under such Trust(s)), and deposit
therein cash or other property in amounts not exceeding the amount of the
Company's obligations with respect to a Participant's Deferral Account or
Company Account established under this Section 6.
(e) Restrictions on Participant Direction. The provisions of
Section 6(b), 6(c), and 7(c) notwithstanding, the Committee may restrict or
prohibit reallocation of amounts deemed invested in specified investment
vehicles, and subject such amounts to a risk of forfeiture and other
restrictions, in order to conform to restrictions applicable to any award or
amount deferred under the Plan and resulting in such deemed investment, to
comply with any applicable law or regulation, or for such other purpose as
the Committee may determine is not inconsistent with the Plan.
-7-
<PAGE>
7. Settlement of Deferral Accounts.
(a) Payout of Deferrals. Payout of deferrals and vested
notional Company contributions shall be made at the time and in the form
elected by the Participant on his or her Deferral Election with respect to
deferrals made and notional Company contributions (if any) vesting during the
Plan Year for which the Deferral Election applies, or, in the absence of such
an election, in accordance with Section 5(c) hereof.
(b) Payment in Cash. The Company shall settle a
Participant's Deferral Account(s) and vested Company Account(s), and
discharge all of its obligations to pay deferred compensation under the Plan
with respect to such Accounts, by payment of cash equal to the Fair Market
Value of the vested hypothetical amounts credited to the applicable Deferral
Account or Company Account.
(c) Forfeitures Under Other Plans and Arrangements. To the
extent that any amount or award (i) is deposited in a Trust pursuant to
Section 6 in connection with (x) a deferral of such amount or award or (y) a
notional Company contribution and (ii) is forfeited, the Participant shall
not be entitled to the value of such award or amount, or any proceeds thereof
or earnings thereon.
(d) Timing of Payments.
(i) Payments in settlement of a Deferral Account or
a Company Account shall be made as soon as practicable after the date or
dates (including upon the occurrence of specified events), and in such number
of installments, as may be directed by the Participant in his or her election
relating to such Deferral Account or Company Account. The Committee may set
a minimum amount for each distribution of deferrals and/or Company
contributions. All amounts needed for a payment will be deemed withdrawn
from the investment vehicle(s) as close in time as is practicable to the
requested payment date. If a Participant has elected to receive installment
payments, unpaid vested balances will continue to earn gains or losses based
upon the performance of the investment vehicle(s) which such Participant has
designated as his or her hypothetical investment(s).
(ii) In the event of a Participant's death prior to
the payment of all vested amounts remaining in his or her Deferral Accounts
or Company Accounts, such amounts shall be paid to the Participant's
designated Beneficiary in a single lump sum.
(iii) Irrespective of any elections made by a
Participant, the Committee may provide that vested amounts credited to a
Participant's Deferral Account or Company Account may be paid out in a single
lump sum in the event of a Change in Control, the Participant's termination
-8-
<PAGE>
of employment from the Company or an affiliate (but ignoring transfers of
employment between or among the Company or any of its affiliates), or a
termination of the Plan affecting the Participant.
(e) Financial Emergency and Other Payments. Other provisions
of the Plan (except Section 8) notwithstanding, if, upon the written
application of a Participant, the Committee determines that the Participant
has a financial emergency of such a substantial nature and beyond the
individual's control that payment of amounts previously deferred under the
Plan is warranted, the Committee may direct the immediate lump sum payment to
the Participant of the applicable portion of the vested balance of such
Deferral Accounts and/or Company Accounts.
8. Provisions Relating to Section 162(m) of the Code. It is the
intent of the Company that any compensation (including any award) deferred or
notional Company contribution made under the Plan by or in respect of a
person who is, with respect to the year of payout, deemed by the Committee to
be a "covered employee" within the meaning of Code Section 162(m) and
regulations thereunder, which compensation constitutes "qualified
performance-based compensation" within the meaning of Code Section 162(m) and
regulations thereunder or otherwise qualifies for an exemption from Code
Section 162(m), shall not, as a result of deferral hereunder, become
compensation with respect to which the Company in fact would not be entitled
to a tax deduction under Code Section 162(m). Accordingly, unless otherwise
determined by the Committee, if any compensation would become so disqualified
under Code Section 162(m) as a result of deferral hereunder, the Committee
may modify the terms of such deferral (including by means of accelerated or
deferred payout) in order to ensure that the compensation would not, at the
time of payout, be so disqualified. Similarly, the Committee may modify the
terms of any deferral (including by means of accelerated or deferred payout)
relating to compensation that does not constitute "qualified performance-
based compensation" within the meaning of Code Section 162(m) or otherwise
does not qualify for an exemption from Code Section 162(m) in order to permit
the deductibility of such compensation under Code Section 162(m).
9. Statements. The Committee will furnish statements to each
Participant reflecting the amount credited to a Participant's Deferral
Accounts and Company Accounts and transactions therein not less frequently
than once each calendar year.
10. Amendment/Termination. The Committee may, with prospective or
retroactive effect, amend, alter, suspend, discontinue, or terminate the Plan
at any time without the consent of Participants, stockholders, or any other
person; provided, however, that, without the consent of a Participant, no
such action shall materially and adversely affect the rights of such
Participant with respect to any rights to payment of amounts credited to such
Participant's Deferral Accounts or Company Accounts. Notwithstanding the
-9-
<PAGE>
foregoing, the Committee may, in its sole discretion, terminate the Plan (in
whole or in part) with respect to one or more Participants and distribute to
such affected Participants the amounts credited to their Deferral Accounts
and Company Accounts in a lump sum as soon as reasonably practicable
following such termination.
11. General Provisions.
(a) Limits on Transfer of Awards. Other than by will, the
laws of descent and distribution, or by appointing a Beneficiary, no right,
title or interest of any kind in the Plan shall be transferable or assignable
by a Participant (or his or her Beneficiary) or be subject to alienation,
anticipation, encumbrance, garnishment, attachment, levy, execution or other
legal or equitable process, nor subject to the debts, contracts, liabilities
or engagements, or torts of any Participant or his or her Beneficiary. Any
attempt to alienate, sell, transfer, assign, pledge, garnish, attach or take
any other action subject to legal or equitable process or encumber or dispose
of any interest in the Plan shall be void.
(b) Receipt and Release. Payments (in any form) to any
Participant or Beneficiary in accordance with the provisions of the Plan
shall, to the extent thereof, be in full satisfaction of all claims for the
awards or other compensation deferred and relating to the Deferral Account
and/or Company Account to which the payments relate against the Company or
any affiliate, the Administrator, or the Committee, and the Committee may
require such Participant or Beneficiary, as a condition to such payments, to
execute a receipt and release to such effect.
(c) Unfunded Status of Awards, Creation of Trusts. The Plan
is intended to constitute an "unfunded" plan for deferred compensation and
Participants shall rely solely on the unsecured promise of the Company for
payment hereunder. With respect to any payment not yet made to a Participant
under the Plan, nothing contained in the Plan shall give a Participant any
rights that are greater than those of a general unsecured creditor of the
Company; provided, however, that the Committee may authorize the creation of
Trusts, including but not limited to the Trusts referred to in Section 6
hereof, or make other or additional arrangements, including, but not limited
to, investing in variable corporate owned life insurance policies, to meet
the Company's obligations under the Plan, which Trusts or other arrangements
shall be consistent with the "unfunded" status of the Plan unless the
Committee otherwise determines with the consent of each affected Participant.
In the event the Committee elects to invest in any corporate owned life
insurance, the Participant shall consent to be insured and agree to submit to
such medical examination(s) as may be required.
(d) Compliance. A Participant in the Plan shall have no
right to receive payment (in any form) with respect to his or her Deferral
-10-
<PAGE>
Account and/or Company account until legal and contractual obligations of the
Company relating to establishment of the Plan and the making of such payments
shall have been complied with in full.
(e) Other Participant Rights. No provision of the Plan or
transaction hereunder shall confer upon any Participant any right to be
employed by the Company or an affiliate, or to interfere in any way with the
right of the Company or an affiliate to increase or decrease the amount of
any compensation payable to such Participant. Subject to the limitations set
forth in Section 11(a) hereof, the Plan shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns.
(f) Tax Withholding. The Company and any affiliate shall
have the right to deduct from amounts otherwise payable in settlement of a
Deferral Account or Company Account any sums that federal, state, local or
foreign tax law requires to be withheld with respect to such payment.
(g) Governing Law. The validity, construction, and effect of
the Plan and any rules and regulations relating to the Plan shall be
determined in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of laws, and applicable provisions
of federal law.
(h) Limitation. A Participant and his or her Beneficiary
shall assume all risk in connection with any decrease in value of his or her
Deferral Account and/or his or her Company Account and neither the Company,
the Committee nor the Administrator shall be liable or responsible therefor.
(i) Construction. The captions and numbers preceding the
sections of the Plan are included solely as a matter of convenience of
reference and are not to be taken as limiting or extending the meaning of any
of the terms and provisions of the Plan. Whenever appropriate, words used in
the singular shall include the plural or the plural may be read as the
singular.
(j) Severability. In the event that any provision of the
Plan shall be declared illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions of the Plan but shall be
fully severable, and the Plan shall be construed and enforced as if said
illegal or invalid provision had never been inserted herein.
(k) Status. The establishment and maintenance of, or
allocations and credits to, the Deferral Account or Company Account of any
Participant shall not vest in any Participant any right, title or interest in
and to any Plan or Company assets or benefits except at the time or times and
upon the terms and conditions and to the extent expressly set forth in the
Plan and in accordance with the terms of any Trust.
-11-
<PAGE>
12. Effective Date. The Plan shall be effective as of April 1, 2000.
-12-
Exhibit 5.1
February 24, 2000
ACNielsen Corporation
177 Broad Street
Stamford, CT 06901
Ladies and Gentlemen:
We have acted as counsel to ACNielsen Corporation, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended, relating to the issuance by the Company of deferred
compensation obligations (the "Obligations"). The Obligations will be issued
pursuant to the ACNielsen Corporation Deferred Compensation Plan (the
"Plan").
We have examined the Registration Statement and the Plan. We
also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other and further investigations as we have deemed relevant and
necessary in connection with the opinions expressed herein. As to questions
of fact material to this opinion, we have relied upon certificates of public
officials and of officers and representatives of the Company.
In rendering the opinion set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
<PAGE>
original documents of all documents submitted to us as duplicates or
certified or conformed copies, and the authenticity of the originals of such
latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that, assuming (a) the
taking of all necessary corporate action to approve the issuance of the
Obligations and related matters by the Board of Directors of the Company, a
duly constituted and acting committee of such Board or duly authorized
officers of the Company and (b) the due issuance of the Obligations in
accordance with the terms of the Plan, the Obligations will constitute valid
and legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the effects of (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or
at law) and (iii) an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State
of New York, the Federal law of the United States and the Delaware General
Corporation Law.
We hereby consent to the filing of this opinion letter as Exhibit
5.1 to the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
-2-
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of ACNielsen Corporation on Form S-8 and in the related Prospectus
of our reports dated February 1, 1999 and June 2, 1999, included in ACNielsen
Corporation's Annual Report on Form 10-K for the year ended December 31, 1998
and Amended Annual Report on Form 10-K/A, respectively.
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
Stamford, Connecticut
February 25, 2000
Exhibit 24.1
------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
of ACNielsen Corporation (the "Company") in their respective capacities set
forth below constitutes and appoints Earl H. Doppelt, Robert J. Chrenc and
Ellenore O'Hanrahan, and each of them, his or her true and lawful attorneys-
in-fact and agents, with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all
capacities, to do any and all acts and all things and to execute any and all
instruments which said attorney and agent may deem necessary or desirable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations and requirements of the Securities and Exchange
Commission thereunder in connection with the registration under such Act of
Deferred Compensation Obligations of the Company to be issued by the Company
pursuant to ACNielsen Corporation Deferred Compensation Plan to the extent
that any such registration may be required in the opinion of the executive
officers of the Company, upon the advice of counsel, including without
limitation, the power and authority to sign the name of the undersigned
individual in the capacity indicated below opposite the name of such
individual to the Registration Statement on Form S-8 or any Form relating to
the registration of such Deferred Compensation Obligations, to be filed with
the Securities and Exchange Commission with respect to said Deferred
Compensation Obligations, to sign any and all amendments (including post-
effective amendments) and supplements to such Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Nicholas L. Trivisonno Chairman, Chief Executive February 17, 2000
- -------------------------- Officer and Director
Nicholas L. Trivisonno (principal executive
officer)
/s/ Robert J. Chrenc Executive Vice President February 17, 2000
- -------------------------- and Chief Financial Officer
Robert J. Chrenc (principal financial and
accounting officer)
/s/ Robert H. Beeby Director February 17, 2000
- --------------------------
Robert H. Beeby
/s/ Michael P. Connors Vice Chairman and Director February 17, 2000
- --------------------------
Michael P. Connors
/s/ Donald W. Griffin Director February 17, 2000
- --------------------------
Donald W. Griffin
/s/ Thomas C. Hays Director February 17, 2000
- --------------------------
Thomas C. Hays
/s/ Karen L. Hendricks Director February 17, 2000
- --------------------------
Karen L. Hendricks
/s/ Robert M. Hendrickson Director February 17, 2000
- --------------------------
Robert M. Hendrickson
-2-
<PAGE>
/s/ Robert Holland, Jr. Director February 17, 2000
- --------------------------
Robert Holland, Jr.
/s/ John R. Meyer Director February 17, 2000
- --------------------------
John R. Meyer
/s/ Brian B. Pemberton Director February 17, 2000
- --------------------------
Brian B. Pemberton
/s/ Robert N. Thurston Director February 17, 2000
- --------------------------
Robert N. Thurston
-3-
